Over at the Divided Argument substack, Nicholas Bagley and Samuel Bray have a post, "Sovereign Immunity, Equity, and the USAID Temporary Restraining Order," exploring some of the procedural and doctrinal wrinkles that divided the justices in this morning's order in Department of State v. AIDS Vaccine Advocacy Coalition (which I discussed here). It is very worth the read.
Their first observation highlights why it is perilous to make sweeping conclusions about today's order and what it signifies about the court, the justices, or how pending and prospective litigation involving the Trump Administration will unfold.
The Chief Justice's administrative stay and the Court's denial of the application had the salutary effect of avoiding the Court being forced to decide—or to tip its hand about a decision regarding—some major legal questions. It would not be good, for example, for the Court to determine the interplay between sovereign immunity, equity, and the disbursement of federal funds on an application for a stay of an order enforcing a temporary restraining order. That emergency posture is not conducive to deliberate decisionmaking.
